This week: N.Y.C. 2030 Census Effort Kicks Off, Newburgh VRA case parties differ on proceedings, State Election Law Bills Advance, State VRA Preclearance Updates, Florida Redistricting Challenge Advances
By Jeff Wice, Alexis Marking & Jarret Berg
N.Y.C. Census Conference Kicks Off 2030 Organizing Push
On April 1, over 100 attendees participated in a half-day conference at New York Law School focused on preparing for the 2030 census. The event was co-sponsored by the N.Y. Elections, Census & Redistricting Institute (at New York Law School), N.Y.C. Council Member Julie Menin, and the N.Y.C. Central Labor Council. The conference was held on the halfway mark between Census 2020 and 2030.
Opening remarks were provided via recorded messages from U.S. House Minority Leader Hakeem Jeffries and N.Y. S. Assemblyman Landon Dais (D-Bronx), the sponsor of state legislation to establish a state census program (A.6894). N.Y.C. Central Labor Council President Vincent Avarez also welcomed participants to the convening.
Panels featured former N.Y.C. Planning Department expert Joe Salvo. Planning Department Population Director Joel Alvarez, CUNY Graduate Center experts John Mollenkopf and Steve Romalewski, Wennie Chin (NYPIRG), Eve Stotland (NY Community Trust), Juan Rosa (NAJLEO), and Pharein Griffith (NAAC). The speakers focused on key lessons learned from 2020 and on how to plan for Census 2030 outreach, especially as it related to hard-to-count communities.
Council Member Menin and NY Law School Professor Jeff Wice authored a column published in the N.Y. Daily News on “Census 2030 is halfway here” and the need to organize early.
A recording of the conference will be provided in a future update.
N.Y. VOTING RIGHTS ACT LITIGATION
Orange County: Clarke et al. v. Newburgh
Following an Appellate Division decision upholding the state Voting Rights Act and directing a challenge to the Newburgh Town Board’s at-large membership, legal wrangling continues back before the lower court where the case is on remand. On March 7th, the Town of Newburgh and its Town Board (“the Town”) requested that the State Supreme Court accept for filing a reply memorandum of law in support of their motion for leave to appeal to the New York State Court of Appeals and requested that the Court refrain from issuing remittitur (“Reply”), which Reply responds to the appellants’ February 28th responses to the Town’s motion to leave for appeal. Although the Town technically may not file this Reply under CPLR 2214(b) because the motion was served on less than 16 days’ notice as required, the Town argues this Reply would “aid the Court’s disposition” of the motion.
The reply memorandum included three main arguments. First, “The Court of Appeals reviewing the constitutionality of the NYVRA now—including determining what implicit elements may support that conclusion—would provide essential clarity to the pending NYVRA cases across the state, while furthering judicial and litigant economy.” Second, “This case is a proper vehicle for the Court of Appeals deciding the unsettled and important constitutional question of whether the NYVRA violates the federal or state Equal Protection Clause, and what implicit elements may support that conclusion.” Lastly, “No remittitur appears on the docket, and withholding remittitur would promote judicial and litigant economy.”
On March 10th, the appellants filed a letter with the Court to object to the Town’s untimely reply. As stated in the letter, “The Town’s notice of motion specifically set the return date for their motion as March 3, 2025 at 10:00 a.m…There is no reason for this Court to entertain papers submitted after the motion has been fully submitted simply because the Town failed to submit their papers on time.” The appellants further contend that this untimely submission was another attempt by the Town to delay the trial in this matter, citing numerous examples of such. A trial must occur in a timely manner for the appellants to receive relief for the 2025 elections. Accordingly, the letter asks the Court to deny the Town’s request to submit a reply, expedite its decision on the pending motion “to the extent possible,” and (upon denying the motion) direct the Supreme Court to schedule a trial.
On March 10th, the Town filed a response to the appellants’ letter with three arguments. First, the Town argues that the appellants’ reasoning “makes no sense” and “this Court accepting the Reply could not possibly delay this Court’s adjudication of the Town’s Motion.” Second, the Town argues that saying they have consistently attempted to delay the trial is an “egregious effort to mislead the Court.” The Town calls attention to the Supreme Court case, stating that the “only source of delay” in those proceedings was due to the plaintiffs’ “inexplicable decision” to file an additional expert report two months after the court-ordered deadline for the submission of expert reports, which created a chain reaction of additional expert reports and depositions.
The Town also states that other than the untimely expert report, “the only reason” that trial did not take place as originally scheduled last fall was because the Supreme Court granted summary judgment in the Town’s favor, which the plaintiffs then appealed. The Town complied with the expedited appellate briefing schedule and immediately filed its motion for leave to appeal once the Court issued its ruling.
Third, the Town argues that by the plaintiffs’ “own explicit and unambiguous concession, they cannot obtain any relief here for the ongoing 2025 election.” As stated in the Town’s response letter, “While Plaintiffs initially sought relief for the 2025 election in their Complaint filed on March 26, 2024, they admitted that ‘any court-ordered remedies’ would have needed ‘to be implemented before February 2025’ for any such relief to take place, given that ‘the nomination process for candidates for Town office in November 2025 will begin in or around February 2025.’”
The Court has not issued a decision yet on this matter.
ELECTION LAW LITIGATION
Eastern District of New York (Kings County): Walden v. Kosinski et al. (N.Y.C. Mayoral)
On March 18th, counsel for mayoral candidate Jim Walden requested immediate injunctive relief to move his case seeking to use the name “Independence” for his party affiliation. Although the New York City Board of Elections has continued to “take no position” on Walden’s constitutional claim, the city BOE has now stated that it will reject Walden’s nominating petitions if he uses the name “Independence Party.” The city BOE must apply the Party Names Provision “as written, consistent with the State [Board’s] position on the law,” unless the provision is “rendered unenforceable.”
Walden’s counsel argues that rendering the provision “unenforceable” would presumably include “a determination, at the preliminary injunction stage, that enforcement is likely to deprive Walden of his First Amendment rights.” Additionally, since Walden intends to file petitions under the Independence Party, the city BOE’s statements show that “Walden’s intended conduct is ‘proscribed by the challenged regulation’ and that he faces a credible threat that the Party Names Provisions will be enforced against him.” Walden therefore requests a preliminary injunction.
On March 31st, Walden’s counsel requested that the Court decide the pending motion for preliminary injunction as soon as possible. The petitioning period of the electoral calendar begins on April 15th, and petitions must include “the name of the independent body whose nomination Mr. Walden seeks.” As a result, Walden must know the Court’s decision in order to have accurate petitions.
On April 1st, the Court denied Walden’s motion for a preliminary injunction.
On April 5th, the Court released its memorandum and order holding that that Walden has not shown a likelihood of success on the merits of his First Amendment claim. Consequently, Walden also has not shown likelihood of irreparable harm. For these reasons, the Court ruled that it did not need to “reach the balance of equities,” and that the preliminary injunction must be denied.
STATE LEGISLATION
Voting and Election Reform Bills Moving in Albany
At the end of March, the State Senate passed a bill (S1356A (Skoufis) / A3649B (Taylor)) with unanimous bipartisan support directing the State Board of Elections to join a multistate voter-registration list-maintenance organization such as ERIC, the Electronic Registration Information Center. The proposal also passed the Senate unanimously in 2023 and again in 2024, only to stall in the State Assembly. However, this past week, the Assembly advanced the proposal to Ways and Means, where it will need to be reviewed before the end of the session and advanced to the floor for a full vote. The pending Assembly bill has nearly two-dozen co-sponsors.
ERIC is a multistate voter list maintenance organization that supports more than 20 member-states and their election administrators by aiding them in identifying and removing ineligible voters from their voter rolls. As the legislative intent explains, ERIC helps improve the accuracy of America’s voter rolls and increases access to voter registration for eligible citizens. Keeping voter rolls clean, accurate, and current is an ongoing data challenge since voter registration is tied to residency and thousands of Americans are constantly moving residences, aging into the voting population, naturalizing, or passing away. While illegal voting is rare, maintaining accurate registration records reduces the vulnerability and helps build confidence in election outcomes.
In addition, the Assembly passed a bill that has also passed the State Senate which adds some flexibility to polling place staffing, by clarifying that local boards of elections can schedule split shifts for poll clerks (ie breaking up the job into multiple shifts) during the lengthy election day assignments which can run 16 straight hours or more. The Assembly election law committee also considered and refused to advance a bill that would have required a form of government-issued ID to be presented when casting a ballot, or a paper copy to be supplied when returning a mail ballot.
Finally, the Senate passed a campaign-finance safeguard (S2437) which would require that social media influencers disclose when they are being paid by a campaign, and which would clarify that political campaigns must disclose such an expenditure in their periodic filings. In the Assembly, the bill is awaiting consideration by the Election Law committee.
VOTING RIGHTS ACT
Attorney General Preclearance Submissions
Last week, the Attorney General’s Office granted permission to the N.Y. C. Board of Elections to move forward with an early voting hours request (141) and an early voting poll site request (221). The Attorney General’s office also received requests from the N.Y.C. Board of Elections (281), Suffolk County Board of Elections (261), Nassau County Board of Elections (262), and the Albany County Board of Elections (162) for other election day voting issues. Numbers after the jurisdictions refer to the submission number. All submissions can be accessed at the Attorney General’s Voting Rights Section portal here: NYVRA Preclearance Portal.
AROUND THE NATION
FLORIDA: A panel of federal judges has now decided that a pending lawsuit in Florida will head to trial. The lawsuit—filed by five residents of St. Petersburg and Tampa—challenges the constitutionality of the 2022 Florida Senate redistricting plan and alleges that Senate Districts 16 and 18 were racially gerrymandered. The residents allege that “racial gerrymandering unjustifiably packed Black voters into District 16, stripping them from adjacent District 18 and reducing their influence there.”
The federal panel rejected the gerrymandering allegation for District 18 and will proceed to trial regarding District 16. The judges pointed to legislators’ statements and other evidence that was taken into consideration when the district was drawn. As stated in the ruling, “Together, the direct and circumstantial evidence that race predominated in drawing District 16 requires this court to weigh evidence and make credibility determinations: a task properly left for trial.” For District 18, the panel determined that the plaintiffs had not provided adequate evidence to proceed.
The districts were drawn under a Florida constitutional amendment known as “Fair Districts,” which was passed in 2010. The amendment requires that new maps do not “diminish” the ability of racial minorities “to elect representatives of their choice.” However, this lawsuit alleges that the Legislature did not “narrowly tailor” its use of race in compliance with the amendment. The plaintiffs therefore argue that the plan violated their equal protection rights.
In addition to this lawsuit, the Florida Supreme Court is currently considering a challenge to the Florida congressional redistricting plan. Also, a third lawsuit (challenging several Florida House districts and one congressional district) is pending in a federal court in Miami.
INSTITUTE RESOURCES
The New York Elections, Census and Redistricting Institute has archived many resources for the public to view on our Digital Commons Page.
Our Redistricting Resources page contains resources on the John R. Lewis Voting Rights Act. You can access the page
here: https://digitalcommons.nyls.edu/redistricting_resources/
Archived Updates can be accessed
here: https://digitalcommons.nyls.edu/redistricting_roundtable_updates/
Please share this weekly update with your colleagues. To be added to the mailing list, please contact Jeffrey.wice@nyls.edu
The N.Y. Elections, Census & Redistricting Institute is supported by grants from the New York Community Trust, New York Census Equity Fund and the New York City Council. This report was prepared by Jeff Wice, Alexis Marking & Jarret Berg.